The nation’s highest judicial authority has reaffirmed the importance of diversity in the most significant civil rights case the U.S. Supreme Court has faced in a quarter century. Despite the spin coming from those opposed to the University’s policies that these opinions are a mixed bag and a minor victory, there is little doubt that the University – and more importantly those who have been fighting for equal opportunity and social equality – emerge victorious.
In its opinions for two cases, Gratz v. Bollinger and Grutter v. Bollinger, which the court heard together, a majority of the nine justices upheld the legal precedent established by the high court in 1978 in the case of University of California Board of Regents v. Bakke. According to this precedent, a university may use race as a factor in the admissions process because diversity is a “compelling state interest.” Even though the court ruled that the College of Literature, Science and the Arts was using an unconstitutional method of creating a diverse student body, the victory in Grutter, the Law School case, clearly provides universities across the country with the court’s approval to continue to use race-conscious admissions policies.
Until yesterday’s decision, the fate of affirmative action in the nation’s institutes of higher education was in question. In 1996 in the case of Hopwood v. Texas, the U.S. 5th Circuit Court of Appeals banned the use of race-conscious admissions policies by universities. This move required universities in the 5th Circuit to look for other methods of maintaining a diverse student body. One of these substitutes for affirmative action was the so-called “10-percent plan,” which President Bush has championed. In addition, under the leadership of Ward Connerly, California voters passed Proposition 209, which outlawed the use of affirmative action in the California university system. Because the University defended the principle of affirmative action and the value of diversity in higher education, affirmative action is on stronger footing today – a development that is good not only for universities nationwide, but for the nation as a whole.
In the opinions, the majority of the court’s justices rejected the pessimistic and illogical reasoning put forth by Justice Antonin Scalia that the University should be forced to choose between having elite schools and having diverse schools. While many minorities do face tremendous disadvantages in the United States, these can be overcome in part by providing them with access to the nation’s elite institutions. Subscribing to a line of thinking that does not believe the nation’s social ills can be repaired makes a mockery of the title, “justice,” that precedes Scalia’s name.
While the court’s decision to strike down the LSA admissions system is a minor setback for the University, President Mary Sue Coleman has already stated that the college will adjust its admissions policies in order to adhere to the court’s opinion. It is essential that the University’s legal team, faculty, administrators and admissions staff promptly begin to reformulate these policies so that the number of minority students attending the schools that until now have used point systems does not drastically decrease. The University must also welcome input from the student body as it undergoes this process. Student involvement in this process is crucial in order to maintain fairness and confidence in the new system.
Upon closer examination of the repercussions that this decision will have, it is important to avoid getting caught up and being blinded by the positive attitude that the University’s supporters are articulating. The role of affirmative action in society remains tenuous. If Justice Sandra Day O’Connor were to retire this year, as some observers expect, the replacement that Bush appoints could tip the court’s majority against affirmative action. Even more likely is that opponents of affirmative action will employ the strategy that they used in California to outlaw affirmative action in a statewide, popular referendum. While the court has found affirmative action to be both constitutional and legal at the federal level, states may still act to outlaw its use. In order to prevent this from occurring on a wide scale, supporters of affirmative action must mount a powerful defense of these policies and describe their importance to the future of the country.
The court also wrote that while the policies that the Law School uses in order to create a diverse student body are constitutional at this time, it expects such policies to no longer be necessary in 25 years. Undoing the social and economic inequities between the races that have developed over hundreds of years in such a short period of time is an ambitious goal and one that will take a great deal of effort to achieve.
Supporters of affirmative action would be mistaken to rest on their laurels in the wake of this victory. Rather, civil rights activists should view this ruling as a call to action. The time has come to end the historic injustices based on skin color that have blemished the American story since it began. The work of fixing the country’s institutions of higher learning and in turn of power and influence will prove to be much more difficult than achieving this narrow victory in the Supreme Court.